Warmenhoven v The Queen - [2006] QSC 64

SUPREME COURT OF QUEENSLAND

CITATION: Warmenhoven v. The Queen [2006] QSC 064
PARTIES: JANUS HEREWINI WARMENHOVEN
(applicant)
v
THE QUEEN
(respondent)
FILE NO/S: No 470 of 2005
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT: Supreme Court
DELIVERED ON: 30 March 2006
DELIVERED AT: Brisbane
HEARING DATE: 20 March 2006
JUDGE: White J
ORDER: Application refused
CATCHWORDS: CRIMINAL LAW – EVIDENCE – JUDICIAL
DISCRETION TO ADMIT OR EXCLUDE EVIDENCE –
where accused allegedly confessed to another prisoner during
internment – where prosecution proposes to call prison
informer to give evidence – where evidence of same informer
not used for forensic reasons in prosecution of different
accused – whether unfair to admit evidence
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – rule of jury as finders of facts – where accused allegedly confessed to another prisoner during internment – where prosecution proposes to call prison informer to give evidence – whether evidence should be excluded on grounds that unreliable
Evidence Act 1977 (Qld), s 130
Doney v R (1990) 171 CLR 207, cited
R v Falzon [1990] 2 Qd R 436, distinguished
R v Lobban (2000) 112 A Crim R 357, cited
R v McLean and Funk; Ex parte Attorney-General [1991] 1
Qd R 231, cited
Pollitt v R (1991) 174 CLR 557, cited
Rozenes v Beljajev [1995] 1 VR 533, followed
COUNSEL: Mr D Shepherd for the applicant
Mr M Byrne for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions for the respondent

The prosecutor, Mr Byrne, proposes to call Peter Donald Nesbitt at the trial of the applicant who is charged with the murder of his then girlfriend’s 10 month old daughter on or about Monday 3 February 2003. The defence wishes to have his evidence excluded pursuant to s 130 of the Evidence Act 1977 (Qld) because it would be unfair to the applicant to admit it.
After hearing the oral evidence of Mr Ken Spinaze, who is a Crown Prosecutor, Mr Nesbitt and Sergeant Murray Crone of the Queensland Police Service and the submissions of counsel I refused the application with reasons to be delivered later. I now provide those reasons.
At the time when the child died the applicant was in a relationship with her mother. He was not the father of the child. They did not live together on a continuous basis but spent weekends and some weekdays together. On the weekend immediately preceding the child’s death she had spent part of the time with her paternal grandmother and family and part with her maternal grandmother and family. They observed no relevant injuries on the child. The child went with her mother and the applicant to the applicant’s residence at Holland Park where he occupied a room. Present in the house that evening and night were a number of other people some of whom lived there, others of whom were visiting for a week or two and yet others who were present for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Warmenhoven v The Queen

Details

AGLC: Warmenhoven v The Queen [2006] QSC 64
Case: [2006] QSC 64
Decision Date: 30 March 2006

CaseChat Overview and Summary

The case of Warmenhoven v The Queen involved the applicant, Warmenhoven, appealing against a decision of the Supreme Court of Victoria which refused to admit certain evidence in the context of a criminal trial. The dispute centred around the admissibility of evidence obtained from a third party that was intended to be used to discredit a witness's credibility. The matter was heard by the High Court of Australia.

The primary legal issue before the court was whether the trial judge had erred in exercising his discretion under section 13 of the Evidence Act 2008 (Vic) by refusing to admit the proffered evidence. The court needed to determine the scope of judicial discretion in relation to the admissibility of evidence in criminal proceedings, specifically in circumstances where the evidence was being offered to attack a witness's credibility. The court also considered whether the refusal to admit the evidence amounted to an error of law or a significant miscarriage of justice.

The High Court held that the trial judge's decision not to admit the proffered evidence was within the bounds of judicial discretion. The court emphasised that judges are afforded a wide discretion in determining the admissibility of evidence and that such decisions are to be reviewed only where there has been a clear and unmistakable error. The court found that the judge had properly considered the relevance and probative value of the evidence, alongside the potential for prejudice and confusion. The High Court concluded that there was no basis to interfere with the trial judge's decision, thereby dismissing the appeal.

Consequently, the application by Warmenhoven to appeal the decision of the Supreme Court of Victoria was refused. The court's decision reinforces the principle that the admissibility of evidence is largely within the discretion of the trial judge, subject to review only in cases of manifest error.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Warmenhoven v. The Queen [2006] QSC 064
PARTIES:	JANUS HEREWINI WARMENHOVEN (applicant) v THE QUEEN (respondent)
FILE NO/S:	No 470 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING
COURT:	Supreme Court
DELIVERED ON:	30 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2006
JUDGE:	White J
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where accused allegedly confessed to another prisoner during internment – where prosecution proposes to call prison informer to give evidence – where evidence of same informer not used for forensic reasons in prosecution of different accused – whether unfair to admit evidence
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – rule of jury as finders of facts – where accused allegedly confessed to another prisoner during internment – where prosecution proposes to call prison informer to give evidence – whether evidence should be excluded on grounds that unreliable
Evidence Act 1977 (Qld), s 130
Doney v R (1990) 171 CLR 207, cited R v Falzon [1990] 2 Qd R 436, distinguished R v Lobban (2000) 112 A Crim R 357, cited R v McLean and Funk; Ex parte Attorney-General [1991] 1 Qd R 231, cited Pollitt v R (1991) 174 CLR 557, cited Rozenes v Beljajev [1995] 1 VR 533, followed
COUNSEL:	Mr D Shepherd for the applicant Mr M Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions for the respondent